Pacta sunt servanda?

Interest declared: For all its worth, the author believes that the Memorandum of Understanding which Argentina signed with Iran on January 2013, in order to investigate the AMIA bombing, was a total and absolute mistake. This said, it should be noted that the MOU was subscribed by the Argentine Government and then ratified by Congress. The fact that only the Government loyalists voted in favour, ignoring the strong views and criticism from those who opposed it, is — let's face it — a moot point. It is a democratically elected governments' prerogative, especially if it has congressional approval, to make grossly mistaken decisions.

Unfortunately, last week's ruling by a Federal Appeals Court declaring the MOU unconstitutional and suspending it — at least temporarily — added another mistake to the mistake. And two wrongs do not make one right.

One of the basic legal rules in the relations between states is that of Pacta sunt servanda. In plain English it means that nation states should stick to the agreements into which they have entered. The recent legal ruling on the Iran MOU prevents Argentina from complying with Pacta. There is an exception to Pacta Sunt Servanda. And it goes by the name Rebus sic stantibus. It allows the parties to walk away from their agreements if circumstances change. But Rebus applies to fundamental structural situations and not to the decision of an appeals court. Especially, if the latter issues such a ruling fifteen months after the Argentine president announced the MOU and fourteen months after it was passed by Congress.

Possibly, neither the US nor the European countries will be too concerned about Argentina's actions. First, because — despite the apparent moderation of the new Iranian President Hassan Rohani — they are not too close to Iran. And second because they are conscious of the weight they carry, so partners take a more circumspect view about Pacta and Rebus when dealing with them. But there are smaller countries which may think differently. And Argentina has been making an effort, in the past few years, to increase its trade and political links with many of these countries. The way in which Argentina is dealing with the Iran MOU is likely to raise some eyebrows.

Interestingly enough, the MOU never became really operational. During long months it was a case of much ado about nothing. Granted, there was action in the courts from the opponents to the Memorandum and verbal skirmishes between government and opposition. Add to that a few well publicized meetings of the Jewish Community organizations with the authorities, and that will be the sum total. Moreover, some argue that the Argentine government fell for the ploy of the centuries-old Persian diplomacy. In order to silence the Argentine demands at the UN General Assembly, it entered into an agreement that could not and would not be implemented. And that — when this became clear — it caused embarrassment to the Argentine Government. So — at this time — both sides benefit from a politically cost-free way out of the whole business.

If that is the case, the Federal Appeals Court obliged the two governments. We will never know this for sure. But, right now, both the Iranian and Argentine Foreign ministries seem quite comfortable. The Iranians are blaming the ruling for the “lost opportunity” of “uncovering the truth,” thus clearing the Iranian suspects in the process. And the Argentine government claims that the two Federal Court judges stood on the way of the Iranian suspects having to answer questions. A cynic would argue that — given the lack of any progress in the implementation of the MOU — the outcome seems to suit everybody. And, after all, the Argentine opposition has also scored some points. So everybody can feel happy.

True, the government has announced that it will appeal the ruling. But those in the know point out that this is a conveniently long process which will last at least twelve months and could — eventually — have a result after this Presidency ends. An eternity in Argentine, or even international, politics.

Although the MOU with Iran is clearly a foreign policy issue, both government and opposition seem too interested in the domestic implications, so as to lose sight of the international picture. This is partly understandable because of the dimension of the AMIA tragedy. But the fact remains that there is much to learn from the rights and wrongs in the response of the Argentine political system to the AMIA-Iran MOU situation. And about the way in which Argentina enters into international agreements,

On this point, there is a most interesting sentence in the Australian Government's report to the UN’s Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. It reads: “It is Australia’s practice not to ratify a treaty until domestic law and policy ensures compliance with its obligations. A working group of officials from all jurisdictions has been formed to carry forward implementation arrangements.” An interesting tip from the Aussies.